Introduction

The Internet is becoming an increasingly
prevalent medium for personal communication and an essential means of commerce.
As it grows, the unfortunate byproducts of traditional commercial and personal
interactions become more and more prevalent on-line.

Ever more business deals (ranging
from simple purchases of goods to complicated contracts) are done on the
net. Some of those business deals go awry, spawning business litigation.
Various forms of harassment, slander, fraud, and other "informational"
torts and crimes may be committed on the Internet. Copyright infringement
abounds on the Internet.

When legal problems arise on-line,
who should bear the cost of liability? Should liability lie purely with
the individual or entity whose action, or failure to act, was directly
related to the event -- the so-called "bad actor?" Should it lie
with individuals, organizations, or institutions that contributed to the
injury or simply provided the "bad actor" access to the Internet?

Since our overarching
goal is to examine problems related to intellectual property in cyberspace,
this module will focus on the specific problem of the liability of Internet
Service Providers for copyright violations on the Internet.(1)

First of all, what is an Internet
Service Provider, or ISP? Much of the literature on this subject
draws subtle but important distinctions between ISPs, On-Line Service Providers
(OSPs), Bulletin Board Systems (BBSs), et cetera. In order to simplify
the discussion, the term ISP will be used in this module to cover a wide
range of companies and organizations that provide their customers, or "clients,"
with access to the Internet. ISPs may be large or small. AOL,
with millions of clients, is an ISP. So is a local "mom-'n-pop" operation
with only a few clients.

As part of their services, ISPs often
give their clients the means to make documents available over the Internet
to the public at large. For example, an ISP may provide its clients
with more than just an email account and access to the web; it may give
them the right to upload files (including web pages) to the ISP's publicly
accessible servers. These files may then be accessed -- and, by necessity,
copied -- by members of the general population.

Problems arise, as one might expect,
when the clients abuse this privilege and post material that violates the
copyright laws. Why would the copyright holders in such situations sue
the ISP rather than the person directly responsible for the infringement?
There are two main reasons, and they are fairly straightforward.
First, it's hard to sue someone if you can't find her. Many ISPs
are corporate entities with fixed places of business, whereas clients who
post infringing materials may be mobile or otherwise difficult to track
down. The ISP is thus usually much easier to find than the individual
who posted the allegedly infringing material. Second, the infringers
are likely to be "judgment-proof" -- meaning that they lack the financial
resources to pay a substantial liability judgment. Therefore, copyright
holders commonly target ISPs because they almost always have more money
than
the individual client who allegedly posted the copyright infringement.
This may not be true for a mom-'n-pop ISP, but the bigger players (such
as AOL, Netcom, et cetera) certainly qualify as "deep pockets."

How might an ISP react to the threat
of copyright liability? One response might be to police aggressively
its servers for copyright infringements. Unfortunately, systematic
policing of client content could be very unpopular with those clients who
are concerned about maintaining a level of privacy and freedom from on-line
censorship. Additionally, such a strategy would be difficult to execute.
The ISP may have so much information on its servers that, even with the
assistance of technologies designed specifically to help parse the information,
reviewing it regularly would be problematic and costly. Even if the
ISP could review the data with regularity, how would it be able to identify
copyright-infringing material? Aside from flagrant cases (e.g., a
web page boldly inviting visitors to download a free copy of Microsoft
Word), it is difficult for an ISP manager (or search engine) to know whether
material is copyright-protected and being used without authorization simply
by looking at it. As a result, the ISP may end up either failing
to remove copyright-infringing material or overzealously removing material
that looks infringing but is not. The former scenario leaves the
ISP open to suit, while the latter raises concerns of censorship.

ISPs may also attempt to avoid liability
by demanding indemnification agreements from their clients. In other words,
the ISP may require each client to sign a contract assuming all responsibility
for any copyright infringement engaged in by the client. While
such indemnities may reduce the risk of liability, they are not ironclad
and do not eliminate the risk altogether.

What does this mean for the average
Internet user? The conventional analysis goes as follows: because
copyright infringement is hard to eliminate through self-policing, ISPs
face an "unavoidable" risk of liability for copyright infringement.
In other words, they face a risk that they cannot entirely eliminate up-front
through cost-effective means. Smaller ISPs may be forced out of business
entirely if the liability risk is too great. Larger ISPs that are
better positioned to prepare for the liability risk would have to set aside
funds for lawyers, settlements and judgments. Alternatively, these
ISPs may choose to purchase some form of liability insurance. Either
strategy costs money. Those costs will eventually be passed on to
consumers, making the cost of Internet access higher for everyone.

Thus, the bedrock beneath the argument
for removing liability from ISPs for copyright infringement centers on
the perceived unfairness in holding unwitting ISPs liable for the illegal
conduct of their clients, the danger that liability will cause ISPs to
exercise restrictive control on client postings in a manner threatening
open on-line discourse, and on the bottom-line result of increased cost
for Internet access passed on to the average user.

On the flip side, a failure to hold
ISPs liable for infringements by their clients may undermine the quality
of material available on the net -- and off the net. Owners of copyrighted
works argue that instantaneous and unredressable digital piracy would reduce
their incentive to produce these works. The result would be a "cheap"
culture -- not "cheap" in the pejorative manner that highbrow commentators
use to describe popular culture, but "cheap" in the sense that the only
works worth producing would be ones that cost very little to make, or where
the costs could somehow be recouped through performance or the cult of
personality. The Grateful Dead (providing their fans with essentially
"free" content while paying the bills through the endless juggernaut of
a roadshow) would be the archetype for working artists, cinema would fast
become hopelessly verite, news would become a self referential chorus of
Drudge reports (perhaps it is so already), reclusive artists such as Thomas
Pynchon would have to find day jobs, et cetera. Not an entirely awful
world, perhaps, but a very different one indeed.

In an effort to limit the potential
liability for ISPs while avoiding a meltdown in copyright protection on-line,
last October Congress passed the Digital Millennium Copyright Act (DMCA),
discussed below. Empirical evidence of its effect, if any, on ISP
liability and copyright protection will take time to develop. Nonetheless,
this module will introduce a basic picture of ISP liability prior to the
DMCA, briefly describe the DMCA itself, and invite you to speculate concerning
what changes, if any, it will bring.

Case
Study

You are the chief executive officer
and largest shareholder of Baffled Internet Group, or BIG. You provide
Internet access to over 5 million clients, mainly in the United States.
Many of those clients have web pages that are stored on your servers (located
throughout the country in every state). These web pages are accessible
through the World Wide Web. Anyone who can get on the web can get to these
pages. Your servers automatically log the number of visits to each web
page and (where possible) the identities of those who visit the web pages.

BIG makes money through a combination
of fees charged to clients and advertising revenue. The fees you
charge clients depend on the amount of service they want. Clients
who want to put web pages on your servers are charged a flat monthly fee
for each page under 100Kb, and an additional $.01 for each kilobyte over
100Kb. The advertising revenues come mainly from banner ads.
Anyone who visits a client web page will see at least one banner ad.
Increased traffic to any particular web page eventually results in increased
ad revenue.

One day, you receive a letter from
I.N. Housecounsel, a lawyer for the Church of Humanitology. It states,
in pertinent part:

"It has come to our attention that
one of your clients, Mr. DeBunker, has posted a web page that is very critical
of Humanitology on one of your servers. Of course, we have great respect
for his First Amendment right to criticize our Church. However, Mr. DeBunker
has apparently decided to post verbatim the entire contents of one of our
publications, "The Secrets of Highly Intrepid Humanitologists." This publication
is strictly guarded by the Church and is only made available to Humanitologists
at a cost of $7,000 per copy. In order to avoid the expense of needless
litigation, kindly:

Remove this publication from your servers,

Forward a check to us for ($7,000) x
(the number of people who have downloaded the publication from your servers)

Give us your server logs so that we
may discern who has visited Mr. DeBunker's copyright-infringing web page
and stamp out this runaway act of piracy.

Yours, I.N. Housecounsel."

You take a very deep breath, and
call your cardiologist. Afterwards, you call your chief technology wonk,
Bing the Server King. After checking around, Bing informs you that:

The offending publication is indeed
on DeBunker's page, which is on a BIG server.

DeBunker created the page seven months
ago, and hasn't changed it since. The size of the page is 120Kb.

DeBunker's web page is popular. The
server logs show that the page has been visited 7,000 times since its creation.

No one in BIG knew it was there. DeBunker
paid his bills on time, and thus had a carte blanche right to upload to
your servers. You guys don't snoop on clients -- that's a cornerstone of
your business philosophy.

Another cornerstone of your business
philosophy is that your clients shouldn't do anything that'll get you in
trouble. This is why every contract with every client (including DeBunker)
includes a section that says "By the way, don't do anything illegal on
our servers. If you do, we reserve the right to remove any illegal
stuff you put there. We bear no liability for anything illegal that
you do, and you hereby indemnify us from any liability resulting from illegal
things that you may do."

What do you do?

Required
Reading

Federal
statutory copyright law is explicitly authorized by the United States Constitution.(3)
Copyright law gives authors the right to protect their original expressive
works, fixed in tangible form, from duplication.(4) However,
ideas themselves are not protected.(5) Thus, a novel
such as "Catcher in the Rye" may not be duplicated in whole or in substantial
part without permission. However, any writer could decide, without need
of J.D. Salinger's permission, to compose a story written in first person
narrative about a disaffected young man from a wealthy family who goes
on a personal odyssey after flunking out of a New York-area preparatory
school.

Furthermore, some
duplication of copyrighted works may be privileged as "fair use." The doctrine
of fair use excuses some copying (but usually not extensive copying, or
the copying of a work in its entirety) in the interest of education and
comment. Thus, for example, a book review of "Catcher in the Rye" that
quoted liberally from the text would not be a violation of copyright. The
use of the novel's text in the review would be privileged.(6)

In short, copyright
law is designed with the dual goal of protecting the author from piracy
-- thus giving her an incentive to create and to distribute her creations
-- while allowing others to freely build on the ideas embodied in the author's
expression.(7)

Copyright law, of
course, is much more complicated than this brief description of its basics.
However, when it comes to ISP liability for copyright infringement, the
finer points of copyright law are generally not in issue. The typical case
of copyright infringement on the net involves a clearly copyrightable work
" such as an article or book, a picture, a piece of software, or a musical
recording"(8) duplicated wholesale and made publicly
available without authorization from the work's owner. Fair use defenses
are very difficult to make in these situations.

What role does the ISP play here?
ISPs don't usually supervise the activities of their clients, but they
do provide the tools that their clients may use to copy the protected work
and make it publicly available. Thus, the ISPs servers and resources are
being used to duplicate and distribute the infringement but the ISP itself
often has no idea that this is happening.

Copyright Law and Unintentional
Infringers

Copyright
owners have the exclusive right to reproduce, distribute and display their
copyrighted work.(9) Anyone who violates one of these
exclusive rights is liable for infringement, even if they did so unwittingly
or unintentionally.(10)

Why penalize unwitting or unintentional infringers?
The primary justifications are twofold. First, even unintentional infringers
deprive copyright owners of the value of their copyrights, and thus the
owners should be compensated. Second, it is extraordinarily difficult to
show intent or knowledge. Therefore, copyright owners would have a hard
time enforcing their rights and infringers would have an easier road to
absolution by simply mounting a "didn't know the gun was loaded" defense.
(11)

Thus, if an ISP itself puts infringing
material onto the Internet, it is liable regardless of its intent.
But what if the ISP merely provides the means by which one of its clients
puts the infringement onto the Internet?

There are two main avenues by which
an ISP would still be liable, even though the the "actual" infringement
was done by the client. These avenues are not explicitly spelled
out in the copyright statute, but have developed over time in federal court
decisions concerning copyright liability.

The first avenue is "contributory
infringement," which occurs when a person either (1) induces another person
to infringe the copyright or (2) materially contributes to the infringing
activities of another person. Thus, an ISP that encouraged or solicited
its clients to post material that was infringing would be liable for contributory
infringement, even though the clients did the actual posting. It
does not matter whether the ISP knows that its request will result in infringement.
For example, suppose an ISP operator (who happens to be a big Elvis fan)
mistakenly assumes that copyrights expire when the copyright holder dies.
The operator sends a message to clients asking them to post audio files
of their favorite Elvis songs. Though unintentional, the operator's
activities constitute contributory infringement.

The second avenue is "vicarious liability."
Vicarious liability occurs when (1) an infringement exists, (2) a person
has the right and ability to control or supervise the infringing activity,
and (3) the person profits from the infringing activity. None of
these elements require that the vicariously liable person have actual knowledge
of the infringing activity.

The ISP as Unintentional (but
Liable) Infringer

Under theories
of vicarious liability or contributory infringement, ISPs that allow clients
to place unauthorized, copyrighted information on the Internet might be
liable for infringement, even though their only contribution to the infringement
was the provision of computer equipment used by others to make and distribute
unauthorized copies. (12) This seems harsh " it would
be almost unthinkable to hold a pen manufacturer liable for infringement
committed using one of her pens, or the paper mill from whence came the
paper used to produce the infringing copies. However, unlike pen manufacturers
or paper mills, ISPs have active and continuing control over the means
to store and transmit the pirated information to wide audiences. They have
the ability to shut down infringements immediately, given notice of them.

Because the Internet's exploding
popularity is a relatively recent phenomenon, there have not been a large
number of court decisions concerning ISP liability for copyright infringement.
(That is not to say that there have been few lawsuits alleging ISP liability
for infringement -- the vast majority of lawsuits settle before reaching
a decision). What follows is a brief history of how courts have attempted
to apply copyright principles to the issue of ISP liability prior to the
passage of the Digital Millennium Copyright Act, or DMCA (discussed in
the following section).

In 1993, a preliminary injunction
was issued against a bulletin board operator allowed unauthorized Playboy
photographs to be uploaded and downloaded from his system. SeePlayboy
Enterprises, Inc. v. Frena, 839 F. Supp. 1552 (M.D.Fla. 1993) <http://www.jmls.edu/cyber/cases/frena.txt>.
Although the defendant argued that he was unaware of the infringement,
never uploaded the photographs himself and removed them upon notice from
Playboy, the court found that the defendant directly infringed Playboy's
copyright. One year later, another bulletin board operator was found
liable for copyright infringement. Unlike the Playboy case, this
operator directly solicited clients to upload Sega video games onto his
system. See Sega Enterprises Ltd. v. MAPHIA, 857 F. Supp.
679 (N.D. Cal. 1994) at <http://www.jmls.edu/cyber/cases/sega.txt>.
In both Frena and Sega, the courts held that the bulletin
board operators could be found liable regardless of whether or not the
copying was intentional. Also, in both cases, the "actual" infringement
was committed by the clients.

One of the most important recent
decision on ISP liability for copyright infringement is Religious Technology
Center v. Netcom Online Communication Services, Inc., 907 F.Supp. 1361
(N.D. Cal. 1995) at <http://www.jmls.edu/cyber/cases/netcom.txt>.
In that case, the Federal District Court for the Northern District of California
was asked to evaluate whether Netcom could be held liable for materials
posted by one of its clients. These materials contained copies of
Church documents and thus allegedly infringed copyrights held by the Church
of Scientology. The court decided three important issues. First,
Netcom
could not be held directly liable for any infringing material posted by
the client since Netcom itself did not upload the material. In short,
the direct infringer was the client who did the uploading, not the ISP
that provided the tools to do so. This part of the decision seemed
to be flatly reject the line taken in Frena. Second, the court
also decided that there wasn't enough of a link between the infringing
activity and Netcom's finances to hold Netcom vicariously liable.
Third, although the court let Netcom off the hook for direct infringement
and vicarious liability, the court refused to rule out the possibility
that Netcom was liable for contributory infringement, leaving the question
of whether Netcom encouraged the client to post infringing materials open
for trial. (No trial ever occurred because the case settled).

Please follow the hyperlinks indicated
above and read the decisions in Frena, Sega, and Netcom.
Both Frena and Sega concerned claims of copyright and trademark
infringement -- you need only read the parts of the decisions that outline
the facts and discuss the copyright infringement claims. (If you
don't have legal training and find it difficult to figure out what the
judges are saying, it may be helpful to start by reading Netcom
first. In Netcom, the judge takes a moment to explain the
Frena
and Sega decisions, and this discussion may be helpful to you.)

...And then came the Digital Millennium
Copyright Act

The 105th Congress attempted to address
the competing concerns of ISPs and copyright owners when it passed the
Digital Millennium Copyright Act.

The
Digital Millennium Copyright Act (DMCA) (H.R. 2281) was intended to implement
the World Intellectual Property Organization (WIPO) Copyright Treaty and
Performances and Phonograms Treaty. (The United States often amends
its domestic copyright law to include WIPO treaty provisions.) The DMCA
was signed into law on October 28, 1998. Title II addresses the liability
of online providers. (13) It generally limits liability
of Internet service providers for a range of activities, including transitory
digital network communications(14), system caching,
(15)
unwittingly linking or referring users to sites containing infringing materials,
(16) and the unwitting storage of copyright-violating
material on their systems. (17)

Focusing specifically on the latter
phenomenon, the DMCA provides that:

[a] service provider shall not be liable
. . . for infringement of copyright by reason of the storage at the direction
of a user of material that resides on a system or network controlled or
operated by or for the service provider, if the service provider

(A)

(i) does not have actual knowledge that
the material or an activity using the material on the system or network
is infringing;

(ii) in the absence of such actual knowledge,
is not aware of facts or circumstances from which infringing activity is
apparent; or

(iii) upon obtaining such knowledge
or awareness, acts expeditiously to remove, or disable access to, the material;

(B) does not receive a financial benefit
directly attributable to the infringing activity, in a case in which the
service provider has the right and ability to control such activity; and

(C) upon notification
of claimed infringement as described in paragraph (3), responds expeditiously
to remove, or disable access to, the material that is claimed to be infringing
or to be the subject of infringing activity. (18)

The
service provider is only shielded from liability if it "has designated
an agent to receive notifications of claimed infringement." (19)
Notifications must adhere to various formalities spelled out in the Act.
They also must identify the copyrighted material in question, identify
the alleged copyright infringement, and provide information "reasonably
sufficient" to allow the ISP to locate and remove the allegedly infringing
material.(20) For example, in the case
study above, Housecounsel identified the copyrighted material (The
Secrets of Highly Intrepid Humanitologists) and the alleged infringement
(DeBunker's page), but it is uncertain whether Housecounsel provided "reasonably
sufficient" information to allow the ISP to locate and remove the material
(a URL would have helped).

Filing
an intentionally misleading claim of infringement, or an intentionally
misleading response that infringing material has been removed, is penalized
under the Act.(21) The Act also limits the liability
of ISPs who take down the allegedly infringing material in response to
a request from a copyright owner, (22) and provides
the copyright owner with a subpoena power to force ISPs to divulge the
identity of the client responsible for the infringement. (23)

The term "service provider" as used in the text above
is defined to include "provider[s] of online services or network access,
or the operator of facilities therefor," and entities "offering the transmission,
routing, or providing of connections for digital online communications,
between or among points specified by a user, of material of the user's
choosing, without modification to the content of the material as sent or
received." (24)

Jonathan Band, a lawyer in Washington
D.C., has written a helpful memo on the DMCA entitled The Digital Millennium
Copyright Act. Please read the section of his memorandum on Title
II of the Millennium Act by following this URL: <http://www.ari.net/dfc/html/jb-memo.html#TITLE
II>

Excerpts from the Legislative
History of the Digital Millennium Copyright Act

"[W]e need this measure to stop an
epidemic of illegal copying of protected works--such as movies, books,
musical recordings, and software--and to limit, in a balanced and thoughtful
way, the infringement liability of online service providers." Sen. Kohl,
Senate Floor Remarks.

"Having heard directly from a major
trade association representing professional servicers, I am pleased we
could include such strong language so that they can go about their business
without fear of facing crippling liability." Sen. Ashcroft, Senate Floor
Remarks.

"Title II preserves strong incentives
for service providers and copyright owners to cooperate to detect and deal
with copyright infringements that take place in the digital networked environment.
At the same time, it provides greater certainty to service providers concerning
their legal exposure for infringements that may occur in the course of
their activities." Conference Report, H.R. 2281 p. 72

"This legislation is not intended
to discourage the service provider from monitoring its service for infringing
material. Courts should not conclude that the service provider loses eligibility
for limitations on liability under section 512 solely because it engaged
in a monitoring program." Conference Report, H.R. 2281 p. 73

Assignment

This assignment applies only to members
of small sections, and not to the plenary group at large. Read the
following two statements:

"Litigation concerning on-line matters
will occur with greater frequency as the industry continues to expand.
Judicial resolutions may be the only avenue for companies and individuals
to clear the Internet's murky waters. In civil matters, increased litigation
will equate to greater litigation costs and an increase in potential liability
for Internet access providers, the deep pockets of Cyberspace. . . . Therefore,
any legislation passed by Congress must include a "knowledge" element to
import liability upon access providers. It remains unclear whether the
judiciary will interpret this knowledge requirement broadly or narrowly." -- Marc L. Caden
& Stephanie E. Lucas, Accidents On the Information Superhighway: On-Line
Liability And Regulation, 2 Richmond J. of L. & Tech. issue 1 par.
101 (1996), at <http://www.urich.edu/~jolt/v2i1/caden_lucas.html>

"[I]t is difficult to identify jurisprudence
which makes the issue of on-line liability a real problem as opposed to
a perceived problem. There certainly seems to be no chilling effect on
the growth of the Internet. It was reported in a Senate hearing earlier
this month that Internet computer servers have grown from just over 200
in 1981 to 16 million today. We are not aware of any flood of lawsuits
that would undercut this strong growth of the Internet. We are aware of
only a dozen or so decisions dealing with copyright liability on the Internet,
many involving operators of bulletin boards. We are not aware that a single
[ISP] has ever been found liable for copyright infringement on the Internet.
. . . Do we have a solution in search of a problem? " -- Mike Kirk,
American Intellectual Property Law Association, H.R. 2281 and H.R. 2180
Hearings before House Courts and Intellectual Property Subcommittee (Sep.16,
1997), at <http://www.house.gov/judiciary/4019.htm>

Which statement do you feel is
more accurate? Are both statements inaccurate? Write a brief
essay supporting one of the above statements (or arguing that neither statement
is supportable).

The Teaching Fellow for your small section will contact you with
directions for submitting your assignment.

Discussion
Topics

The DMCA is only a few months old and
therefore it is difficult to gauge whether or not it will successfully
balance the interests of copyright holders and ISPs. (Here's your
chance to test your crystal ball-gazing skills!)

What effect do you think it will have
with respect to the issue of ISP liability?

Based on your reading of the Case Study,
RTC
v. Netcom, and the DMCA, how would the Case Study turn out in a pre-DMCA
world? In a post-DMCA world?

Is there a chance that ISPs will become
deluged with notices of alleged copyright infringements on their machines?

What if many of the allegations turn
out to be wrong, but not so wrong that the ISP could make a case for deception
under the Act?

Should the ISP alone bear the cost of
ensuring compliance? Should those costs be born by the alleging party
if the allegation turns out to be untrue (but not so untrue as to be a
deceptive claim under the DMCA)?

Most of the commentary in the legislative
history indicates that the legislators were very concerned with reducing
the liability of ISPs. Did they pay adequate enough attention to the interests
of copyright holders?

Did the legislation do enough to reduce
ISP liability? Should ISP liability for copyright infringement be entirely
eliminated?

The limitation of liability applies
only to ISPs that take down materials in response to requests. Will this
encourage ISPs to create "delete now, ask questions later" policies?

Is the subpoena power created under
this Act a threat to privacy on-line?

Resources

On the DMCA

To read the text of the DMCA, the conference
report and other portions of the legislative history, see http://www.hrrc.org/DMCA-leg-hist.html.
This page is maintained by the Home Recording Rights Coalition (HRRC),
an advocacy group organized "to protect the right to use VCRs, audio recorders
and computers for private, non-commercial purposes."

http://www.ari.net/dfc/html/2180.html,
maintained by the Digital Future Coalition, provides background materials
on the history of the On-Line Copyright Liability Limitation Act, which
started life as a separate piece of legislation but was eventually folded
into the DMCA.

Comments by interested parties on the
On-Line Copyright Liability Limitation Act (these comments were made a
year prior to the passage of the DMCA):

Roy Neel, United States Telephone Association,
H.R. 2281 and H.R. 2180 Hearings before House Courts and Intellectual Property
Subcommittee (Sep.16, 1997), at <http://www.house.gov/judiciary/4006.htm>

The Honorable Bruce Lehman, Assistant
Secretary of Commerce and Commissioner of Patents and Trademarks, H.R.
2281 and H.R. 2180 Hearings before House Courts and Intellectual Property
Subcommittee (Sep.16, 1997), at <http://www.house.gov/judiciary/40001.htm>

David J. Loundy, E-Law 2.0: Computer
Information Systems Law and System : Operator Liability Revisited, at <http://www.murdoch.edu.au/elaw/issues/v1n3/loundy.txt>
(discussing how ISP liability for on-line conduct of its clients resembles
that of a press, publisher, common carrier, et cetera -- see
especially section IX., entitled "Liability for Computer Information System
Content ")

David G. Post, Anarchy, State, and the
Internet: An Essay on Law-Making in Cyberspace, 1995 J. Online L. art.
3, at <http://warthog.cc.wm.edu/law/publications/jol/post.html>
(explaining that the rules governing on-line behavior will evolve over
time on the Internet in a free-market fashion, and will not simply be a
restatement of laws that exist in the "real" world)

John P. Barlow, The Economy of Ideas,
A Framework for Rethinking Patents and Copyrights in the Digital Age (Everything
You Know About Intellectual Property is Wrong), WIRED, Mar. 1994, at <http://www.wired.com/wired/archive/2.03/economy.ideas.html>
(comparing the Internet to the frontier west where the people made their
own laws). If you have trouble accessing this page directly, go to
http://www.wired.com/wired/
and browse the archives for issue 2.03.

Charles J. Meyer, National and International
Copyright Liability for Electronic System Operators, 2 Global Legal Studies
J. no. 2, at <http://www.law.indiana.edu/glsj/vol2/no2/meyer.html>
(examining the difficulties inherent in balancing the interests of ISPs
and copyright holders)

Useful Off-line Resources

Joan Gilsdorf, Comment, Copyright Liability
Of On-Line Service Providers, 66 U. Cin. L. Rev. 619 (1998) (examining
the scope of OSP liability, pre DMCA, in light of recent court decisions
and recommendations made by the Clinton administration's Working Group
on Intellectual Property Rights.)

Niva Elkin-Koren, Copyright Law and
Social Dialogue on the Information Superhighway: The Case Against Copyright
Liability of Bulletin Board Operators, 13 Cardozo Arts & Ent. L.J.
345 (1995) (arguing that the imposition of copyright liability on ISPs
threatens the "democratization" of the Internet and stimulates undesirable
centralized control of content on the Internet)

Jane C. Ginsburg, Putting Cars on the
"Information Superhighway": Authors, Exploiters, and Copyright in Cyberspace,
95 Colum. L. Rev. 1466 (1995) (noting that authors will need assurances
that their works will be protected on the Internet, and that with such
assurances the Internet could provide entirely novel forms of artistic
creation)

David J. Loundy, E-Law: Legal Issues
Affecting Computer Information Systems and System Operator Liability, 3
Alb. L.J. Sci. & Tech. 79 (1993) (arguing that ISP liability will be
a function of the analogies chosen by courts in their efforts to comprehend
the radically different world of on-line conduct)

Special
Events

Nothing at this time. Check back later.

Footnotes

This
unit focuses on copyright infringement because it is squarely an intellectual
property problem, whereas other potential sources of liability are chiefly
problems of tort and contract. (Of course, the distinction isn't airtight
" copyright infringement is itself a tort, and defamation or slander can
be rationalized as the theft or damage of an intellectual property of sorts,
namely ones reputation and goodwill.) Beyond this doctrinal concern, it
is useful to isolate and study the problem of copyright infringement on
the Internet because the alleged economic costs of it are staggering. See
William J. Cook, Be Wary of Internet Casting Shadows on Copyright Holders,
Chicago Law., Apr. 1996, at 60, 60 (restating testimony given before the
U.S. House Judiciary Committee), who cites a federal estimate of ten billion
dollars lost annually due to data theft in the U.S. alone. While this may
include some losses due to the unauthorized publication of trade secrets,
it is almost certain that copyright infringement accounts for a significant
share of that figure, and even more losses worldwide. (return
to text)

See U.S.
Const. art. I, 8, cl. 8 (giving Congress the power "[t]o promote the Progress
of Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and Discoveries.").
(return to text)

Copyright
protection extends to "original works of authorship fixed in any tangible
medium of expression, now known or later developed, from which they can
be perceived, reproduced, or otherwise communicated." 17 U.S.C. 102(a).
A document or image stored in electronic memory counts as a work fixed
in a tangible medium. (return to text)

All of
these are well recognized copyrightable works, including software. See
17 U.S.C. 102(b). (return to text)

17 U.S.C.
106 (1994). The Copyright Act gives copyright owners the exclusive rights
to: (1) reproduce the copyrighted work, (2) prepare derivative works based
on the copyrighted work, (3) distribute copies of the copyrighted work
to the public, (4) perform the copyrighted work publicly, (5) display the
copyrighted work publicly, and (6) perform the copyrighted work publicly
by digital audio transmission if the work is a sound recording. See id.
(return to text)

See
17 U.S.C. 106(1)-(3), (5), 501(a) (1994). See also David Halbreich et al.,
Intellectual Property on the Internet: Surfing Through Liability and Coverage
Issues, Mealey's Litig. Rep.: Emerging Ins. Disputes, Nov. 14, 1996, at
21, 25. Prior to the passage of the Digital Millennium Copyright Act, innocent
intent would not relieve liability but was taken into consideration when
determining damages. See Bruce A. Lehman (Chair), Intellectual Property
and the National Information Infrastructure, The Report of the Working
Group on Intellectual Property Rights 115 (1995) (The "White Paper").
(return to text)

See
William J. Cook, Be Wary of Internet Casting Shadows on Copyright Holders,
Chicago Law., Apr. 1996, at 60, 60 (restating testimony given before the
U.S. House Judiciary Committee). (return to
text)

See
David Halbreich et al., Intellectual Property on the Internet: Surfing
Through Liability and Coverage Issues, Mealey's Litig. Rep.: Emerging Ins.
Disputes, Nov. 14, 1996, at 20, 25-26."The
absence of such express language in the copyright statute does not preclude
the imposition of liability for copyright infringement on certain parties
who have not themselves engaged in infringing activity. For vicarious liability
is imposed in virtually all areas of the law, and the concept of contributory
infringement is merely a species of the broader problem of identifying
the circumstances in which it is just to hold one individual accountable
for the actions of another." Sony Corp. v. Universal City Studios, Inc.,
464 U.S. 417, 435 (1984). (return to text)

Title
II of the DMCA is known as the Online Copyright Infringement Liability
Limitation Act (OCILLA). It was a separately proposed piece of legislation
that was eventually folded into the DMCA. (return
to text)